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05 11 10dojpackage1
05 11 10dojpackage1
____
109th Congress
1st Session
H.R. ____
M________________ introduced the following bill, which was referred to the Committee on the
Judiciary.
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A BILL
Be it enacted by the Senate and House of Representatives of the United States of America
in Congress assembled,
(a) SHORT TITLE- This Act may be cited as the “Intellectual Property Protection Act of
2005.”
(a) AMENDMENT- Section 411 of title 17, United States Code, is amended–
(2) in subsection (a), by inserting “civil” before “action” the second time it
appears; and
(3) in subsection (b), by striking “506 and sections 509 and" and inserting “505
and section".
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SECTION 3. CIVIL REMEDIES FOR INFRINGEMENT.
(a) AMENDMENT- Section 503 of title 17, United States Code, is amended–
(1) in subsection (a), by striking the final period and inserting “and records
documenting the manufacture, sale, or receipt of things involved in such
violation. The court shall enter an appropriate protective order with respect to
discovery by the applicant of any records that have been seized. The protective
order shall provide for appropriate procedures to assure that confidential
information contained in such records is not improperly disclosed to the
applicant.”
(a) IN GENERAL- Section 506(a)(1) of title 17, United States Code, is amended–
(3) by striking subparagraph (A) and inserting “(A) if the infringement was
committed or attempted for purposes of commercial advantage or private
financial gain”;
(6) by inserting at the beginning of subparagraph (C) “if the infringement was
committed”.
(b) FURTHER AMENDMENT- Section 506(b) of title 17, United States Code, is
amended by striking that subsection and inserting the following:
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“(B) any property constituting or derived from any proceeds obtained
directly or indirectly as a result of a violation of subsection (a); and
“(B) The forfeiture of property under subparagraph (A), including any seizure
and disposition of the property and any related judicial or administrative
proceeding, shall be governed by the procedures set forth in section 413 of the
Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 853),
other than subsection (d) of that section. At the conclusion of the forfeiture
proceedings, the court shall order that any forfeited infringing copies or
phonorecords, as well as any plates, molds, matrices, masters, tapes, and film
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negatives by means of which such infringing copies or phonorecords may be
made, be destroyed or otherwise disposed of according to law.
“(4) When a person is convicted of an offense under this section, the court,
pursuant to sections 3556, 3663A, and 3664 of Title 18, United States Code, shall
order the person to pay restitution to the copyright owner and any other victim of
the offense as an offense against property referred to in section
3663A(c)(1)(A)(ii).”
(c) SEIZURE AND FORFEITURE- Section 509 of title 17, United States Code, is
repealed.
(a) IN GENERAL- Chapter 6 of Title 17, United States Code, is amended to read
“Manufacturing Requirements, Importation, and Exportation”
(b) AMENDMENT- Section 602(a) of Title 17, United States Code, is amended–
“(2) Importation into the United States or exportation from the United
States, without the authority of the owner of copyright under this title, of
copies or phonorecords, the making of which either constituted an
infringement of copyright or would have constituted an infringement of
copyright if this title had been applicable, is an infringement of the
exclusive right to distribute copies or phonorecords under section 106,
actionable under sections 501 and 506.
(7) By inserting “or exportation” before the first “of” in clause (A);
(8) By inserting in clause (B) “or exportation” before the first comma;
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(9) By inserting in clause (B) “or exporter” before “and”;
(10) By inserting in clause (B) “or departing from the United States” before the
second “with”;
(c) FURTHER AMENDMENT- Section 602 of Title 17, United States Code, is amended
in the section heading by inserting “or exportation” before “of copies or phonorecords”.
(a) AMENDMENT- Section 1101(b) of title 17, United States Code, is amended to read
as follows:
“(2) where the term “financial gain” includes the receipt, or expected
receipt, of anything of value.”
(a) AMENDMENT- Section 1201 of title 17, United States Code, is amended–
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“(C) the term ‘traffic’ means to transport, transfer, or otherwise dispose
of, to another, or to make, import, export, obtain control of, or possess,
with intent to so transport, transfer, or otherwise dispose of.”
(a) IN GENERAL- Section 1204 of title 17, United States Code, is amended by inserting
at the end the following:
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equipment used in any manner or part to commit or facilitate the
commission of a violation of subsection (a), be destroyed or
otherwise disposed of according to law.”
(a) IN GENERAL- Section 1028(d)(12) of title 18, United States Code, is amended to
read as follows:
“(B) where the term ‘financial gain’ includes the receipt, or expected receipt, or
anything of value.”
(a) IN GENERAL- Section 1029(e)(5) of title 18, United States Code, is amended to read
as follows:
“(5) the term ‘traffic’ means to transport, transfer, or otherwise dispose of, to
another, or to make, import, export, obtain control of, or possess, with intent to so
transport, transfer, or otherwise dispose of;”.
(a) IN GENERAL- Section 1834 of title 18, United States Code, is amended–
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“(a) The following property is subject to forfeiture to the United States:
“(e) When a person is convicted of an offense under this section, the court,
pursuant to sections 3556, 3663A, and 3664, shall order the person to pay
restitution to the owner of the trade secret and any other victim of the
offense as an offense against property referred to in section
3663A(c)(1)(A)(ii).”.
(a) IN GENERAL- Section 2318 of title 18, United States Code, is amended–
(b) AMENDMENT- Section 2318 of title 18, United States Code, is further amended–
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“(1) The following property is subject to forfeiture to the United
States–
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“(B) The forfeiture of property under subparagraph (A), including
any seizure and disposition of the property and any related judicial
or administrative proceeding, shall be governed by the procedures
set forth in section 413 of the Comprehensive Drug Abuse
Prevention and Control Act of 1970 (21 U.S.C. 853), other than
subsection (d) of that section. At the conclusion of the forfeiture
proceedings, the court shall order that any counterfeit label or
illicit label and any article to which a counterfeit label or illicit
label has been affixed, or which a counterfeit label or illicit label
encloses or accompanies, or which was intended to have had such
label affixed, enclosing, or accompanying, be destroyed or
otherwise disposed of according to law.
(4) When a person is convicted of an offense under this section, the court,
pursuant to sections 3556, 3663A, and 3664, shall order the person to pay
restitution to the owner of the marks or copyrighted works involved in the
offense and any other victim of the offense as an offense against property
referred to in section 3663(A)(c)(1)(A)(ii).”.
(a) IN GENERAL- Section 2319 of title 18, United States Code, is amended as follows–
(1) in subparagraph (b)(1), by inserting “or was intended to consist of” before
“reproduction”;
(3) in subparagraph (c)(1), by inserting “or was intended to consist of” before
“reproduction”;
(a) IN GENERAL. Section 2319A of title 18, United States Code, is amended–
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(1) by striking subsection (c);
(b) FORFEITURE AND DESTRUCTION. Section 2319A(b) of title 18, United States
Code, is amended to read as follows:
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“(ii); any property constituting or derived from any proceeds
obtained, directly or indirectly, as the result of the offense; and
“(5) When a person is convicted of an offense under this chapter, the court,
pursuant to sections 3556, 3663A, and 3664, shall order the person to pay
restitution to the performer or performers, and any other victim of the offense as
an offense against property referred to in section 3663A(c)(1)(A)(ii).”
(c) DEFINITIONS- Section 2319A(d)(2) of title 18, United States Code, as renumbered,
is amended to read as follows:
“(B) where the term ‘financial gain’ includes the receipt, or expected
receipt, of anything of value.”
(d) APPLICABILITY. At the end of section 2319A(e), as renumbered, insert before the
period the following:
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“, except that the criminal forfeiture provisions in subparagraph (b)(3) shall apply
only where the underlying act or acts occur on or after the effective date of that
subparagraph”.
(a) IN GENERAL. Section 2319B(b) of title 18, United States Code, is amended to read
as follows:
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“(iii) any property used, or intended to be used, in any
manner or part, to commit or facilitate the commission of
the offense.
(a) IN GENERAL- Section 2320 of title 18, United States Code, is amended–
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conclusion of the forfeiture proceedings, the court shall order that any
forfeited article bearing or consisting of a counterfeit mark be destroyed or
otherwise disposed of according to law.
(b) AMENDMENT- Section 2320 of title 18, United States Code, is further amended–
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“(B) where the term ‘financial gain’ includes the receipt, or
expected receipt, of anything of value; and”.
(a) IN GENERAL- Section 2516(1)(c) of title 18, United States Code, is amended–
(1) by striking “sections 2312, 2313, 2314, and 2315 (interstate transportation of
stolen property,” and inserting “section 1831 (relating to economic espionage to
benefit any foreign government, instrumentality, or agent), sections 2312, 2313,
2314, and 2315 (relating to interstate transportation of stolen property), section
2319 (relating to criminal infringement of a copyright), section 2320 (relating to
trafficking in counterfeit goods or services),”.
(a) REVIEW AND AMENDMENT.–Not later than 180 days after the date of enactment
of this Act, the United States Sentencing Commission, pursuant to its authority under section
994 of title 28, United States Code, and in accordance with this section, shall review and, if
appropriate, amend the Federal sentencing guidelines and policy statements applicable to
persons convicted of any offense under–
(b) AUTHORIZATION.– The United States Sentencing Commission may amend the
Federal sentencing guidelines in accordance with the procedures set forth in section 21(a) of the
Sentencing Act of 1987 (28 U.S.C. 994 note) as though the authority under that section had not
expired.
(1) the definition of “infringement amount” set forth in application note 2 of section
2B5.3 of the Federal sentencing guidelines is adequate to address situations in which the
defendant has been convicted of one of the offenses listed in subsection (a) and the item in which
the defendant trafficked was not an infringing item but rather was intended to facilitate
infringement, such as a circumvention device, or the item in which the defendant trafficked was
infringing and also was intended to facilitate infringement in another good or service, such as a
counterfeit label, documentation, or packaging, taking into account cases such as U.S. v. Sung,
87 F.3d 194 (7th Cir. 1996); and
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(2) the act of exporting infringing items, in any case sentenced under section 2B5.3 of the
Federal sentencing guidelines, should receive an upward adjustment in the offense level, on the
grounds that exportation introduces infringing items into the stream of foreign commerce in a
manner analogous to the manner in which manufacturing, importing, and uploading such items
introduces them into the stream of commerce.
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